DIWAN SINGH Vs. STATE OF HARYANA

JUDGEMENT

(1.) Author of FIR No. 71 recorded in Police Station, Uchana District Jind of Haryana State at 7.45 p.m. on April 14, 1988 reported to the police, TIJ am a resident of village Khapar and do cultivation. We are three brothers. I am the eldest. Rameshwar is younger to me. Shamsher is younger to Rameshwar. We live jointly. Today at about 6.30 p.m. I was returning from my field to village. I had hardly reached near the house of Panjaba in the public street when Satbir son of Badlu came near the house of Panjaba in the public street on a bicycle from outside at the same time whereas from the opposite side Pirthi son of Badlu resident of the village who is my cousin came from his field side. Satbir struck his bicycle with Pirthi son of Badlu and they grappled with each other and left the street thereafter. Satbir Singh son of Badlu narrated all the facts to Diwan Singh Subedar. Pirthi and I disclosed the entire facts to our uncle Badlu. Upon which my uncle Badlu, Satbir son of Badlu, Pirthi son of Badlu and I were going towards the house of Diwan Singh through the public street to remonstrate and we had hardly reached near the house of Panjaba son of Raghunath in the public street, when we found Suraj Bhan son of Badlu, strangely when the Medical Officer of Dharampur examined the injured complainant on next day, i.e. 15.7.1991 at 9.30 a.m. he did not appear to have notice any such injuries. In fact, the certificate produced by Mr. Pardiwala reveals that what was vaguely complained of was merely a pain in the chest. It appears that some X-ray of the complainant were taken and the result of NAD [i.e. No Abnormality was Detected.]. This also sadly and adversely reflects upon overall credibility of the prosecution story; (iv) that as per the Annexure-B to the petition on 4-7-1991, it appears that some complaint has been filed by the Forest Department against the complainant, B.C. Patel for the alleged theft of the forest wood committed by him and petitioner-accused from discharging his duty effectively and thereby to get away from the clutches of law, false, malicious and vexatious complaint has been filed by him by way of counter-blast against the petitioner accused. Mr. Pardiwala on the basis of the aforesaid contention finally submitted that if/the benefit of anticipatory bail under Section 438 of the Code was not made available to the petitioner-accused and if by sheer misfortune he was arrested and detained in custody for a period of 48 hours or more, then in that case, as per the provisions contained in rule 5(2) of the Gujarat Civil Services Rules, 1971, he shall be deemed to have been placed under suspension by an order of appointing authority. This indeed would seriously prejudice the honest and innocent public servant like the petitioner-accused who day in and day out while discharging his public duty honestly, sincerely and firmly has to displease number of anti socials and the criminals and who in turn bearing grudge and malice may schemingly victimise such innocent public servants by such false and malicious allegations. According to Mr. Pardiwala, if despite the overall improbabilities and the falsehood of the allegations as pointed out above, the Court is to refuse the anticipatory bail merely on the ground of the offence being under the Atrocities Act, then in that case, the petitioner accused would be seriously prejudiced at the very threshold of the prosecution and in the case, if ultimately he was to be acquitted, damage caused as a result of denial of anticipatory bail would be armed with a jaili, Satbir sb Badlu sb Bakhtora armed with a lalhi, Ranbir Singh son of Diwan Singh armed with a jaili, Sardara son of Bakhtora armed with a jaili, Dalbir sb Desa armed with a lathi, Prem sb Badlu s/c Bakhtora armed with lathi standing in the street. Diwan Singh son of Bakhtaura armed with a gun came to public street from his house. Suaj Bhan son of Badlu son of Bakhtora gave his jaili blow (lathi wise) to my uncle Badlu which hit on his mouth. Ranbir son of. Diwan Singh gave a jaili blow to my uncle Badlu. Satbir son of Badlu son of Bakhtora gave a lalhi blow on my cousin Pirthi, Dalbir son of Desha gave a lathi blow to my cousin Satbir which nit him on his left arm. Sardara son of Bakhtora resident of the village also gave lathi blow on my uncle Badlu. Prem son of Badlu son of Bakhtora resident of the village gave lathi blow on my uncle Badlu, Diwan Singh son of Bakhtora, resident of the village was saying openly while standing in public street, Ranbir, Prem Suraj Bhan, Satbir son of Badlu son of Bakhtora, Dalbir, Sardara to remain at a distance. On hearing this they all went behind Diwan Singh and Diwan Singh fired 7/8 shots from his licenced gun aiming at my uncle Badlu., Thereafter, he fired a shot at my cousin Pirthi as a result of which 2/3 pellets hit on his eye-brow and forehead and some fire shots hit on the wall and window of Panjaba. Gun shots hit at the chest, rib and left arm of my uncle Badlu. There are 20/22 pellet marks on his back. My uncle Badlu succumbed of these injuries caused with these fire shots. Previously we used to altercate on petty matters. The proceedings under section 107/151 of Cr. P.C. are also pending in the court. Today on finding an opportunity they have murdered my uncle Badlu by firing shots. The assailants in connivance with one another raised a lalkara saying that they had killed only one person and they would kill other persons of our family. My aunt Lachhmi and my brother Satbir son of Badlu son of Hardhan raised an alarm that Diwan Singh had murdered my uncle Badlu by firing shots. On hearing my alarm, Shiba son of Harnam Jat by caste, resident of the village reached there. My aunt Lachhmi, my cousin Satbir, Shiba and I have seen this occurrence with our own eyes. The assailants ran away from the spot together with their respective weapons. Ptirhi, my cousin Satbir and I came to Uchana under fear. Satbir and Pirthi went to hospital at Uchana. Leaving Sadhu Ram sb Badlu and Sardara Chowkidar resident of the village near the dead body of Badlu son of Hardhan, resident of the village at the spot, I have come to police station to lodge a report. Legal action may be taken.

(2.) On being charged with the commission of offences under Sections 148, 302/149, 307/149 and 323/1.49 of the Indian Penal Code all the seven accused and in respect of the charge under section 302 of the Indian Penal Code and Section 27 of the Arms Act principal accused Diwan Singh pleaded not guilt thereto and claimed to be tried. Vide its impugned judgment dated May 5, 1989 learned trial court acquitted six out of the seven accused. Accused Diwan Singh alone was convicted for the commission of the offences under sections 302,307 and 323 of the Indian Penal Code and Section 27 of the Arms Act. Sentences awarded to him for these convictions obtaining in the conviction order of the learned trial court dated May 5, 1989 are imprisonment for life for his conviction under Section 302 of the Indian Penal Code, rigorous imprisonment for 10 years for his conviction under Section 307 of the Indian Penal Code, rigorous imprisonment for six months for his conviction under Section 323 of the Indian Penal Code and rigorous imprisonment for two years for his conviction under Section 27 of the Arms Act. Feeling aggrieved there from, convicted accused Diwan Singh has filed Criminal Appeal No. 325-DB/1989 in this Court.

(3.) We have heard Shri Harbhagwan Singh, Sr. Advocate with Shri I.S. Yadav, Advocate, for the appellant, Shri Jatinder Sharma, Advocate for the respondent State and carefully perused the relevant material on record.